THE NEW NATIONAL LABOR RELATIONS BOARD (“NLRB”)
THE NEW NLRB WILMA LIEBMAN CHAIR PETER SCHAUMBER MEMBER CRAIG BECKER ASSOCIATE GC FOR SEIU MARK GASTON PEARCE FOUNDING PARTNER OF UNION SIDE LAW FIRM BRIAN HAYES EMPLOYER SIDE ATTORNEY
WHY THE NEW NLRB IS LIKELY TO MAKE CHANGES • Consider the backgrounds and published statements of the new Board Chair and Craig Becker • Not as much is known about Mark Pearce, but he has exclusively represented unions
NLRB CHAIR WILMA LIEBMAN • Wilma Liebman is a former lawyer for the Teamsters and Bricklayers unions • She is the author of some of the most potent dissents to majority Board decisions issued over the past ten years, particularly those issued by the Bush Board • The Obama Board chaired by her with majority union side members likely will have the opportunity to reconsider and reverse many decisions issues by the Bush Board • Liebman spoke before a Congressional committee in December of 2007 – Expressed strong disagreement with decisions issued by the Board over the past several years – Expressed opinion that the decisions eroded rights of employees and labor unions – Expressed opinion that the decisions impede collective bargaining, create obstacles to union representation, or favor employer interests
NLRB CHAIR WILMA LIEBMAN – Expressed opinion that the decisions she has criticized are inconsistent with NLRA’s intended purpose – Expressed opinion that there is need for the Board through decision making to eliminate obstacles to collective bargaining and union organizing and to enhance employee right • In her dissents stated that the Act is not a neutral statute under which the rights of employees to join or not join a union are considered on an equal basis • According to her, the Act requires the Board to decide cases in a manner that emphasizes union representation and promotes collective bargaining
LIEBMAN’S FOCUS • Stronger remedies for employees and unions for employer violations of the NLRA – Increased use of bargaining orders – Electronic posting of Notices related to ULP’s – Less burden on employees to demonstrate loss of back pay if victim of discrimination
LIEBMAN’S FOCUS (cont.) • Subordination of employer rights if these limit employee Section 7 rights – Property rights – Free speech rights – Right to establish work rules
LIEBMAN’S FOCUS (cont.) • Greater inclusion of individuals deemed protected by the Act – NLRA protection for contingent workers/temporary workers/workers provided by staffing agencies – Efforts to insure that NLRA protections are extended to unrepresented workers – Revisiting the definition of supervisor so that fewer individuals are excluded from the Act’s protection based on alleged supervisory status
LIEBMAN’S FOCUS (cont.) • Expand the definition of “concerted activity” protected by the NLRA
LIEBMAN’S FOCUS (cont.) • More accommodation for means used by unions to organize and for employee union activities – Greater protection for union “salting” activities – Requiring that employers post notices describing employee Section 7 rights – Establish rights of employees to use employer emails for union solicitations – Validation of voluntary recognition agreements, neutrality agreements or other means of creating a collective bargaining relationship without a traditional Board conducted election – Perhaps more restrictions on what employers can say and do in response to known or suspected union activity
LIEBMAN’S FOCUS (cont.) • Increased emphasis on maintaining collective bargaining relationships once formed – More obstacles for employers seeking to withdraw recognition from an incumbent union – Greater obligations on an employer to provide requested information to a union either during collective bargaining or otherwise – Less deferrals to “dubious” arbitration awards
CRAIG BECKER • Appointment raises similar considerable concerns • Seems to believe that statutory amendments are not necessary to radically change existing Board precedent and practice • Close association with SEIU raises questions about ability to impartially judge cases that will come before the Board • Becker’s role at SEIU may prompt him to advocate with Board colleagues to implement portions of EFCA even if not enacted by Congress • Board may then attempt to impose EFCA card check on its own • Believes employers should be stripped of right to campaign against organizing and give captive audience speeches • Believes unions should have equal access to workplace • Critical of NLRB election process • Believes that Gissel orders which require an employer to recognize and bargain with a union should be routinely issued if employer is found to have engaged in ULPs
REGISTER GUARD • An employer may prohibit employees from using office e-mail to disseminate information about union activities – Policy prohibited employee use of Company email system for “non job related solicitations” – Employer was aware that employees used e-mail for personal reasons – No evidence that e-mail used to solicit support for outside causes or organizations other than United Way – Employer and Newspaper Guild had been in contract negotiations – Union president sent three e-mails through employer e-mail system
REGISTER GUARD – Company proposed new rule during bargaining prohibiting use of e-mail for union business – Union refused to bargain over the proposal and filed a ULP alleging 8(a)(5) violation • Issue of first impression – Majority analogized issue to permissible restrictions on employer owned bulletin boards/telephone/televisions – Found that employees have no statutory rights to use employer property—including email systems—for union related solicitations or other Section 7 purposes
REGISTER GUARD • Discrimination issue: – Although employer email was used by employees for lots of personal messages, including personal solicitations, but not for solicitations to support or participate in an outside cause or organization – The majority found no discrimination in denial of use of email for union related solicitations – Discrimination defined as “the unequal treatment of equals.” – Held that since other solicitations for third party organization membership had not been allowed, no discrimination because of Section 7—despite the fact that various other solicitations were allowed on the employer’s email system.
WHAT IS LIKELY OBAMA BOARD VIEW? • Email not like TV, bulletin boards, etc. • Where employees use email for business, banning non-work related email solicitation should be deemed unlawful absent extraordinary circumstances
DANA CORP. • The Board’s “recognition bar doctrine” – Where an employer voluntarily recognizes a union based on a majority showing of interest, the Board will allow the parties a “reasonable period of time” to reach a contract – It will not hold decertification or other kinds of elections in that unit during that time frame
DANA CORP. • Board developed a new rule: – Employees must be notified in writing of the voluntary recognition and informed of their right to file or support decertification or rival union petitions within 45 days thereafter – The Board also ruled that if such petitions are filed within that 45 day period, they will be processed
DANA CORP. • This was a significant modification to the automatic election bar that came with voluntary recognition • The decision also was quite remarkable for its clear commentary: • that elections are a much better way of determining employee choice than cards or other information which might be used to support voluntary recognition • that successful union card campaigns may be premised on misrepresentation of facts, etc.
WHAT IS LIKELY OBAMA BOARD VIEW? • Liebman complained that the effect of the decision is to disrupt a new bargaining relationship before it can be firmly established
OAKWOOD HEALTHCARE, INC. • Definition of supervisor within the meaning of this term in the NLRA • “ Assign ” – Designate an employee to a place (department, unit), or – Appoint an employee to a time (shift or OT), or – Award significant overall duties or tasks
OAKWOOD HEALTHCARE, INC. • “Responsibility to Direct” – What job should be undertaken and who should perform it, accountability for the tasks of others • “Independent Judgment” – Degree of discretion exercised by a supervisor must be more than routine, clerical or perfunctory
WHAT IS OBAMA BOARD LIKELY VIEW? • “Assign”: To make assignments does not make someone a supervisor – Only assignments of workers to shifts, departments or job classifications do • “Responsibility to Direct”: Intended to cover only persons in charge of department level work
HARBORSIDE HEALTHCARE Under prior law, solicitation of an authorization card by a supervisor was unlawful only where the supervisor’s conduct was somehow threatening or coercive • In this decision, the Board held that solicitation of an authorization card by a supervisor is inherently coercive regardless of what the supervisor actually said or did
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